Daily Times

The French statesman Dr Georges Clemenceau, who led his country during World War I, is said to have quipped: “It suffices to add ‘military’ to a word for it to lose its meaning. Military justice is to justice what military music is to music.” Despite decades of labouring under the establishment’s heel, Pakistan somehow finds it necessary to add military to the solution for any problem it stumbles upon; the latest in the series is bringing terrorists to book. After the massacre at the Army Public School (APS), Peshawar earlier this month, a consensus seemed to be developing to take the terrorism bull by its horns. The hope was that both the civilian and military leaderships would introspect long and hard and rectify what have been the national security and foreign policy blunders of Himalayan proportions. However, instead, those at the helm came up with solutions that range from nebulous and ridiculous to downright dangerous. Agreeing to apply military force to the wrong end of the terrorism problem raises serious concerns about both the sagaciousness and independence of civilian leadership.

While the soldiery is equipped and needed to neutralise the terrorists on the battlefield, it is hardly prepared to deliver justice through the proposed summary military courts. At the time of this writing, the PML-N government seems set to present in parliament a constitutional amendment to create military courts. Prime Minister Nawaz Sharif has said, “Military courts will try only hardcore terrorists. Special courts are part of the national action plan and are meant to provide an extraordinary solution for an extraordinary problem. All institutions will have to carefully scrutinise cases to be sent for prosecution in the special military tribunals.” According to another newspaper report, Chief of Army Staff (COAS) General Raheel Sharif assured the reluctant political parties last week that “only jet black terrorists who have committed violent crimes will be tried by the proposed special courts”. Sadly, both leaders seemed to have turned the basic premise of justice on its head: anyone to be brought before the military courts will ostensibly be considered guilty till they prove themselves innocent.

While the actual amendment and procedure set for the military courts will determine the exact nature of this planned parallel judicial system, in all likelihood it will do away with the citizens’ recourse to the superior judiciary’s writ of habeas corpus, making the process a de facto martial law. The summary nature of the military courts, including the extremely short time allowed for the defendants to respond, flies in the face of Article 10(a) of the Pakistani Constitution that was inserted in 2010 to guarantee the due process of law. The said Article states: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” Tinkering with the Constitution to usurp fundamental rights will be a clear violation of the International Covenant on Civil and Political Rights that Pakistan ratified in 2010. Pakistan appears set to enter the new year by resorting to decades-old tricks. The civilian leadership, caving in to the military’s rather unconcealed demand to grant it these special courts, is reminiscent of President Iskander Mirza appointing General Ayub Khan as the Chief Martial Law Administrator (CMLA) in 1958. While the then superior judiciary ostensibly had the power to issue writs such as habeas corpus it could not do so against the “CMLA, his deputy or any person exercising the powers of jurisdiction under the authority of either”, i.e. the military courts. General Ayub Khan booted out President Mirza within days of consolidating his martial law powers.

In 1977, the late prime minister Zulfikar Ali Bhutto had had martial law imposed in Lahore, Karachi and Hyderabad when his government failed to control the opposition’s agitation. Mr Bhutto went on to establish military courts and amended the Army Act to allow those tribunals to try civilians. Thankfully, the Sindh and Lahore High Courts annulled the military courts before they could become operational but Mr Bhutto ended up ceding massive political space to the military in the process. General Ziaul Haq toppled Mr Bhutto within months and sent him to the gallows in less than two years. Mr Nawaz Sharif himself is no stranger to special courts. In his second prime ministerial stint, Mr Sharif set up special anti-terrorism courts in 1997 and then military courts in 1998, ostensibly to curb urban militancy in Sindh. The Supreme Court under Chief Justice Muhammad Ajmal Mian declared the 1998 military courts illegal on an appeal filed by the Muttahida (then Mohajir) Qaumi Movement leader Sheikh Liaquat Hussain. General Pervez Musharraf overthrew Mr Sharif’s government and the same anti-terrorism courts sentenced him. Not that a military takeover is imminent today but precious political space has been ceded to the security establishment, which will haunt the democratic dispensation in the medium to long run.

The APS attack was a massive intelligence and security failure, which has been made to look like a judicial failure. Not a word has been said about how such a debacle could have happened in the heavily barricaded Peshawar cantonment. The already lacklustre civilian leadership seems to have lost control of the narrative and appears unable to ask hard questions. It is merely following the military’s lead. The military’s argument seems to be not that its officers are better qualified to adjudicate the terrorism cases but that they are better protected and thus likely to brave the terrorists’ threats that the civilian judges allegedly cannot. In his 1999 judgment, Justice Ajmal Mian noted that instead of letting the military run a parallel judicial system, its assistance can be sought under Article 245 of the Constitution to help the civilian judicature, including anti-terrorism courts, “at all stages including the security of the Presiding Officer, advocates and witnesses appearing the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”

The civilian leadership should think twice before tampering with the Constitution. Terrorism cannot be fought without the armed forces but they cannot become the judge, jury and executioner. The Supreme Court’s 1999 judgment still provides an excellent template for the political leadership to build upon. Ends cannot justify the tainted means. Bad laws applied to bad guys can potentially be used against good guys too. Extraordinary circumstances require extraordinary statesmanship, not political and judicial shortcuts. Politicians should resist the temptation and pressure to just add military to all anti-terrorism solutions.

The writer can be reached at mazdaki@me.com and he tweets @mazdaki